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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`100 EAST FIFTH STREET, ROOM 540
`POTTER STEWART U.S. COURTHOUSE
`CINCINNATI, OHIO 45202-3988
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`Deborah S. Hunt
`Clerk
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`Tel. (513) 564-7000
`www.ca6.uscourts.gov
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`Filed: September 02, 2020
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`Ms. Danielle Rae Allison Yokom
`Office of the Attorney General
`of Michigan
`P.O. Box 30755
`Lansing, MI 48909
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`Mr. Samuel R. Bagenstos
`Samuel Bagenstos
`625 S. State Street
`Suite LR 910
`Ann Arbor, MI 48104
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`Ms. Katherine Jean Bennett
`Office of the Attorney General
`of Michigan
`P.O. Box 30736
`Lansing, MI 48909
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`Mr. Ronald Grant DeWaard
`Varnum
`P.O. Box 352
`Grand Rapids, MI 49501-0352
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`Ms. Anna Marie Hill
`Michigan Immigrant Rights Center
`15 S. Washington Street
`Suite 201
`Ypsilanti, MI 48197
`
`Diana Marin
`Michigan Immigrant Rights Center
`15 S. Washington Street
`Suite 201
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`
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`Case 1:20-cv-00751-PLM-PJG ECF No. 46 filed 09/02/20 PageID.892 Page 2 of 9
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`Ypsilanti, MI 48197
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`Mr. Aaron M. Phelps
`Varnum
`P.O. Box 352
`Grand Rapids, MI 49501-0352
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`Mr. Mark G. Sands
`Office of the Attorney General
`of Michigan, Alcohol & Gambling Enforcement Division
`2860 Eyde Parkway
`East Lansing, MI 48823
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`Re: Case No. 20-1815, Susana Castillo, et al v. Gretchen Whitmer, et al
`Originating Case No. : 1:20-cv-00751
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`Dear Counsel,
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` The Court issued the enclosed Order today in this case.
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`cc: Mr. Thomas Dorwin
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`Enclosure
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`Sincerely yours,
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`s/Bryant L. Crutcher
`Case Manager
`Direct Dial No. 513-564-7013
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`
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`Case 1:20-cv-00751-PLM-PJG ECF No. 46 filed 09/02/20 PageID.893 Page 3 of 9
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`No. 20-1815
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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
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`(cid:41)(cid:44)(cid:47)(cid:40)(cid:39)
`(cid:54)(cid:72)(cid:83)(cid:3)(cid:19)(cid:21)(cid:15)(cid:3)(cid:21)(cid:19)(cid:21)(cid:19)
`(cid:39)(cid:40)(cid:37)(cid:50)(cid:53)(cid:36)(cid:43)(cid:3)(cid:54)(cid:17)(cid:3)(cid:43)(cid:56)(cid:49)(cid:55)(cid:15)(cid:3)(cid:38)(cid:79)(cid:72)(cid:85)(cid:78)
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`SUSANA CASTILLO, individually and on behalf
`of all others similarly situated, et al.,
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`Plaintiffs-Appellants,
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`v.
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`GRETCHEN WHITMER, in her official capacity
`as Governor of the State of Michigan, et al.,
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`Defendants-Appellants.
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`O R D E R
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`Before: STRANCH, THAPAR, and READLER, Circuit Judges.
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`Plaintiffs are a group of agricultural business owners and employees who challenge the
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`enforcement of an emergency order issued by the Michigan Department of Health and Human
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`Services imposing COVID-19 testing protocols on employers and housing providers in certain
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`agricultural settings beginning on August 24, 2020 (the “Order”). Plaintiffs claim that requiring
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`them to administer or take COVID-19 tests violates the Equal Protection clause and sought a
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`preliminary injunction barring enforcement of the Order. The district court denied the motion for
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`a preliminary injunction and Plaintiffs appeal. They also move to expedite the appeal and seek a
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`preliminary injunction while the appeal is pending. Defendants, Michigan’s Governor and the
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`Directors of the Department of Health and Human Services and the Department of Agricultural
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`and Rural Development, oppose the motion for a preliminary injunction but do not address the
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`motion to expedite. In addition, fourteen law and justice nonprofits; four labor unions; twelve
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`community organizations who advocate on behalf of farmworkers, low-wage workers, and Latino
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`communities; two public health experts; a public health nonprofit; and a community health interest
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`group move for leave to file an amicus brief in support of Defendants’ opposition to an injunction
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`and have tendered their brief.
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`We may “grant an injunction pending appeal to prevent irreparable harm to the [moving]
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`party.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 572 (6th Cir. 2002). In
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`determining whether to grant an injunction, we examine four factors: (1) the movants’ likelihood
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`of success on appeal; (2) whether the movants will suffer irreparable harm in the absence of an
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`injunction; (3) whether issuance of an injunction would cause substantial harm to the other
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`interested parties; and (4) where the public interest lies. Id. at 573. “A preliminary injunction is
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`an extraordinary remedy which should be granted only if the movant carries his or her burden of
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`proving that the circumstances clearly demand it.” Id.
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`Plaintiffs are unlikely to succeed on the merits of their appeal. We review the denial of a
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`motion for preliminary injunction for abuse of discretion. Nat’l Hockey League Players’ Ass’n v.
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`Plymouth Whalers Hockey Club, 325 F.3d 712, 717 (6th Cir. 2003); Taubman Co. v. Webfeats,
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`319 F.3d 770, 774 (6th Cir. 2003). Accordingly, “[t]he district court’s determination will be
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`disturbed only if the district court relied upon clearly erroneous findings of fact, improperly applied
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`the governing law, or used an erroneous legal standard.” Nat’l Hockey League Players’ Ass’n,
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`325 F.3d at 717. “Under this standard, [we] must review the district court’s legal conclusions de
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`novo and its factual findings for clear error.” Taubman, 319 F.3d at 774 (quoting Owner–Operator
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`Indep. Drivers Ass’n v. Bissell, 210 F.3d 595, 597 (6th Cir. 2000)).
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`In essence, Plaintiffs argue that the district court applied the wrong legal standard. “The
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`Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any
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`person within its jurisdiction the equal protection of the laws.’” City of Cleburne v. Cleburne
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`Living Center, Inc., 473 U.S. 432, 439 (1985) (quoting U.S. Const. amend. XIV, § 1). This is
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`“essentially a direction that all persons similarly situated should be treated alike.” Id. (citing Plyer
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`v. Doe, 457 U.S. 202, 216 (1982)). Thus, “any official action that treats a person differently on
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`account of his race or ethnic origin is inherently suspect,” Fisher v. Univ. of Tex. at Austin, 570
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`U.S. 297, 310 (2013) (quoting Fullilove v. Klutznick, 448 U.S. 448, 523 (1980) (Stewart, J.,
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`dissenting)), and “racial ‘classifications are constitutional only if they are narrowly tailored to
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`further compelling governmental interests.’” Id. (quoting Grutter v. Bollinger, 539 U.S. 306, 326
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`(2003)).
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`In addition, facially race-neutral actions are also unconstitutional when
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`they
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`disproportionately affect a racial minority and can be traced to a discriminatory purpose. Pers.
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`Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 (1979). In this case, the district court determined
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`that the Order is facially race-neutral, and Plaintiffs do not expressly challenge that determination.
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`Likewise, the district court recognized that the Order does have a disparate impact on Latinos. But
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`the district court rejected Plaintiffs’ argument that the Order was motivated by an improper racially
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`motivated purpose. That factual finding was not clearly erroneous.
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`To establish improper purpose, a plaintiff must show “that the decisionmaker . . . selected
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`or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its
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`adverse effects upon an identifiable group.” Id. at 279. Courts may find evidence of improper
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`purpose in the historical background of the decision, “particularly if it reveals a series of official
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`actions taken for invidious purposes.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
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`U.S. 252, 267 (1977). “[C]ontemporary statements by members of the decisionmaking body” may
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`also be relevant. Id. at 268.
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`Plaintiffs’ proffered evidence is insufficient. They cite to an April publication entitled
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`“COVID-19 Response & Mitigation Strategies For Racial & Ethnic Populations & Marginalized
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`Communities” as proof that racial identity was top-of-mind for Defendants when drafting the
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`Order. Likewise, Plaintiffs point to two earlier executive actions that referenced the
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`disproportionate impact COVID-19 has had on communities of color and the desire to improve
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`racial equity in healthcare, asserting a pattern of official activity with racial motivations. But
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`considering the effects of government action on various racial groups is not evidence of improper
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`purpose: “[i]f consideration of racial data were alone sufficient to trigger strict scrutiny, then
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`legislators and other policymakers would be required to blind themselves to the demographic
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`realities of their jurisdictions and the potential demographic consequences of their decisions.”
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`Spurlock v. Fox, 716 F.3d 383, 394 (6th Cir. 2013).
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`Nor can Plaintiffs demonstrate invidious purpose based on the statistics referenced in the
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`press release and in the Director’s interview. Statements of fact about the high incidence of
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`COVID-19 among the Latino community and throughout the agricultural industry may indicate
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`that the Order will have a significant impact on Latinos, but they do not compel a finding that the
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`impact motivated the Order.
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`Plaintiffs also argue that the scope of the Order is so inconsistent that the only logical
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`explanation is an attempt to restrict Latinos. They argue that the Order cannot be based on living
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`conditions because it requires testing of seasonal workers who do not stay at migrant camps. They
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`argue that the Order cannot be based on working conditions because it requires testing of
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`employees of meat, poultry, and egg processing facilities but not employees in other similar
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`agricultural settings. They assert that many agricultural employers are exempt from testing
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`requirements unless they hire migrant or seasonal workers, even while the working conditions
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`remain constant. Finally, they assert that Defendants offer no evidence of any COVID-19 outbreak
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`at a greenhouse facility and that several other industrial settings, such as skilled nursing facilities
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`and construction sites, account for significantly greater numbers of outbreaks. Concluding that
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`there is no practical reason for singling out these groups, Plaintiffs argue that the real motivation
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`behind the Order is its negative effects on Latinos.
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`Plaintiffs’ asserted conclusion does not follow from the facts they cite. That most workers
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`subject to the Order’s testing requirements are Latino is evidence of disparate impact but does not
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`indicate discriminatory intent. Likewise, Plaintiffs have not shown why failing to require testing
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`of similar accommodations and agricultural settings where Latinos are not the majority is proof of
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`improper purpose. They offer no legal authority for the proposition that the State must address all
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`similar situations in unison. In any event, the Order references past outbreaks in migrant housing
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`camps and food processing facilities, justifying the State’s focus on those places. And while other
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`settings might also benefit from compulsory testing, or might account for a greater number of
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`outbreaks, that is not evidence that the Order’s limited scope is racially motivated.
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`Put simply, Plaintiffs’ argument requires us to view disparate impact as evidence of
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`discriminatory motive. That is inconsistent with longstanding Supreme Court precedent requiring
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`those asserting equal protection violations to show both impact and intent. Pers. Adm’r of
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`Mass., 442 U.S. at 272; Washington v. Davis, 426 U.S. 229, 242 (1976) (“Disproportionate impact
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`is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by
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`the Constitution. Standing alone, it does not trigger [strict scrutiny].”) The requirement to show
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`discriminatory impact is a high bar that Plaintiffs have not met.
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`Because Plaintiffs did not establish that the Order had a discriminatory purpose, the district
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`court correctly determined that the Order is subject to rational basis review, under which the
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`government’s action is presumed constitutional and Plaintiffs must “negate ‘every conceivable
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`basis which might support’ it.” League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer,
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`814 F. App’x 125, 128 (6th Cir. 2020) (quoting Armour v. City of Indianapolis, 566 U.S. 673, 681
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`(2012)). Likewise, the district court correctly concluded that Plaintiffs could not disprove all
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`possible permissible justifications for the Order, including Defendants’ assertion that the Order is
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`motivated by the State’s rational desire to protect migrant workers, their families, their
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`communities, and the food supply chain. Accordingly, Plaintiffs are unlikely to succeed on the
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`merits of their appeal.
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`In addition, Plaintiffs have not demonstrated that enforcement of the Order will cause them
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`irreparable harm. It is true that irreparable harm is presumed in cases of constitutional violations,
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`but as noted above, the Order is not unconstitutional. See Am. Civil Liberties Union of Ky. v.
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`McCreary Cnty., Ky., 354 F.3d 438, 445 (6th Cir. 2003), aff’d sub nom. McCreary Cnty., Ky. v.
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`Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005). The risks of a false positive, workers
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`leaving the industry, or lost housing are too speculative to support injunctive relief. See Mich.
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`Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991)
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`(holding that “the harm alleged must be both certain and immediate, rather than speculative or
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`theoretical”). Nor is monetary loss or logistical burden sufficient. Baker v. Adams Cnty./Ohio
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`Valley Sch. Bd., 310 F.3d 927, 930 (6th Cir. 2002) (per curiam) (quoting Sampson v. Murray, 415
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`U.S. 61, 90 (1974)) (“Mere injuries, however substantial, in terms of money, time and energy
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`necessarily expended in the absence of a stay, are not enough.”).
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`Meanwhile, enjoining the testing scheme poses a substantial risk of harm to others given
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`that identifying and isolating COVID-19-positive workers limits the spread of the virus. The
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`virus’s effects on individual and community health is well documented; to the extent the Order is
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`motivated by the legitimate government purpose of protecting migrant workers, their families,
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`their communities, and the food supply chain, enforcing it serves the public interest. And
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`interceding in a State’s administrative processes is an extreme step the federal judiciary typically
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`avoids, especially as the State attempts to manage a pandemic.
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`Finally, Plaintiffs’ motion to expedite should be granted. “A party may move to expedite
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`an appeal. The motion must show good cause to expedite.” 6 Cir. R. 27(f). A party may move to
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`expedite oral argument. 6 Cir. R. 34(c)(1). “[We] may expedite oral argument, even if the time
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`to file briefs has not expired by the date of the expedited hearing.” Id.
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`If we schedule oral
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`argument on an appeal from the grant or denial of a preliminary injunction, “argument will
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`generally be expedited.” 6 Cir. R. 34(c)(2). “When [we] grant[] a motion to expedite, the clerk
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`will schedule oral argument at an early date. A judge may direct an earlier hearing.” 6 Cir. R.
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`34(c)(3).
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`Defendants do not oppose expediting the case. The parties are cautioned that no extensions
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`of the briefing schedule will issue absent a showing of good cause.
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`The motion for a preliminary injunction is DENIED. The motions to expedite and for
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`leave to file an amicus brief are GRANTED.
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`ENTERED BY ORDER OF THE COURT
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`Deborah S. Hunt, Clerk
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